A recent decision from the Court of Appeals for the Federal Circuit has brought a relatively obscure section of trademark law into the constitutional spotlight and paved the way for a potential Supreme Court debate. Reviewing a case involving the music group THE SLANTS, the court held the trademark act’s rule refusing registration for disparaging marks unconstitutional because it violates the freedom of speech clause of the First Amendment.
This same disparagement provision of the trademark act is currently under review in another case involving the dispute over the name for DC’s football team. Efforts to cancel THE REDSKINS trademark registration have been widely reported, and that case is now under review by another court of appeals. Will this appellate court follow the Federal Circuit’s lead? Or will it uphold the rule’s constitutionality? The outcome will determine whether this issue will be ripe for review by the Supreme Court.